Civil Procedure Code, 1908, Order 22, Rule 3 -- Substitution of LR's - Death of plaintiff - Appellant made contradictory averments as one time he claimed himself to be adopted son of deceased plaintiff and later his brother - Contents of application also reflects that it is not applicant alone who could claim himself to be sole LR inasmuch as he is third son of plaintiff,..........
Civil Procedure Code, 1908, Order 41, Rule 27 -- Additional evidence at appellate stage - Appeal decided without deciding application for additional evidence - Where application for additional evidence is filed during pendency of appeal, it is incumbent upon appellate Court to consider and decide the same at the time of final decision of appeal on merits as to whether..........
Civil Procedure Code, 1908, Order 41, Rule 27, 28 -- Additional evidence at appellate stage - No explanation as to why application not filed at earliest - However, documents filed along with applications U.O.41.R.27 CPC are necessary to pronounce judgment - Applications rightly allowed and appellate Court rightly remanded matter back to trial Court...........
Civil Procedure Code, 1908, Order 39, Rule 7 -- Appointment of Commissioner - Suit for permanent injunction - Actual status of suit land is not available on record - It is thus, necessary to appoint commissioner - Trial Court while directing Commissioner to make inspection and file report alongwith coloured photographs specifically directed that Commissioner would not..........
Civil Procedure Code, 1908, Order 23, Rule 1(3) -- Withdrawal of suit - Formal defect - Non pleading of facts in the plaint - Not a formal defect - Order allowing withdrawal of suit set aside...........
Civil Procedure Code, 1908, Order 8, Rule 6A -- Counter claim - Must necessarily find its place in the written statement...........
Civil Procedure Code, 1908, Order 9, Rule 13, Limitation Act, 1963, Article 123 -- Ex parte decree - Setting aside - Defendant was duly served in the proceedings - Limitation to set aside ex parte decree starts to run from the date of order and not from the date of knowledge of such order...........
Civil Procedure Code, 1908, Section 11 -- Res judicata - In previous suit for permanent injunction neither an issue was framed with regard to ownership of property nor question of ownership was necessary to be adjudicated upon for determining entitlement of plaintiff therein to seek injunction against interference in her possession or dispossession therefrom forcibly and..........
Civil Procedure Code, 1908, Section 92 -- Public trust - Hospital - Trust run as a private family Trust by ignoring object of trust - Plaintiff prayed for framing of a proper scheme of administration and for appointing trustees from medical profession - If in respect of a trust which had set up a hospital, a request is made for framing of a proper scope of administration..........
Civil Procedure Code, 1908, Order 26, Rule 4, 4A -- Commission to examine attesting witness of Will - Attesting witness suffering from various ailments - It is thus, a fit case where Commissioner may be appointed to record evidence of witness - Application allowed...........
